Constitutions and Constitutional Conventions of Hawaii

Richard H. Kosaki

I. INTRODUCTION

The State of Hawaii on July 5, 1978,1 convened its third constitutionalconvention since 1950. While Hawaii is a young state, she is notunfamiliar with constitutions and constitutional conventions.

Constitutions first appeared in the Kingdom of Hawaii in 1840. Thelisting below indicates the effective dates of constitutions which havegoverned the citizens of the Hawaiian Islands since the days of themonarchy.

Constitutions of Hawaii

Kingdom of HawaiiConstitution of 1840 October 8, 1840Constitution of 1852 June 14, 1852Constitution of 1864 August 20, 1864Constitution of 1887 July 6, 1887

Republic of HawaiiConstitution of 1894 July 4, 1894

Territory of HawaiiOrganic Act of 1900 June 14, 1900

State of HawaiiConstitution of 1950 Effective with statehood

August 21, 1959Constitution of 1968 Amendments ratified

November 5, 1968

Richard H. Kosaki is Professor of Political Science at the University of Hawaii.

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II . CONSTITUTIONS OF THE MONARCHY AND REPUBLIC

Historian Ralph S. Kuykendall notes that: "The idea of a writtenconstitution was a natural result of the operation of foreign influences."2

The first constitution of Hawaii was granted by Kamehameha III onOctober 8, 1840. But it is recorded that a written Bill of Rights, "aptlycalled Hawaii's Magna Charta [sic.]" was promulgated on June 7, 1839,and can be considered the forerunner of the first constitution.3

The role of written constitutions is often exaggerated in politicalanalyses and histories. But constitutions do serve as symbols andbenchmarks around which meaningful political histories can be written,and interpretations of major political trends can be associated withconstitutional changes. For example, one version of a constitutionalhistory of the Kingdom of Hawaii is succinctly provided by these lines:

Absolute monarchy had come to an end in 1840. Since that time the kingdom hadbeen governed under no less than four constitutions: the original one freely granted byKamehameha III in 1840; one adopted by the legislature with the concurrence of thesame King in 1852; one promulgated by Kamehameha V in 1864 on his own authority;and one granted in 1887 by Kalakaua as the result of a popular uprising. . . .4

That the Constitution played an important role in the Kingdom ofHawaii can dramatically be seen in the following account of the demiseof the monarchy: "The last act was the one played out during the fatefulfour days, January 14, 15, 16, and 17, 1893. The attempt made by QueenLiliuokalani, on the first of these days, to do away with the Constitutionof 1887 and proclaim a new one cost her the throne and led to thedownfall of the monarchy on January 17."5

After the overthrow of Queen Liliuokalani, a provisional governmentwas established with a "committee of safety" in power. On May 30,1894, a constitutional convention was called, "consisting of nineteenmembers of the councils who exercised legislative and executive authorityunder this government, and of eighteen delegates chosen by popularelection."6 The dominant theme of the convention of 1894 is describedas follows:

. . . Indeed, the general principles to be embodied in it were clear to everyone from thefirst. The new government was to be a republic, and in view of the long and closeconnection of Hawaii with the United States it must inevitably be a republic of theAmerican type. But the convention was not framing a plan of government for a newly-created state; Hawaii already had a considerable constitutional history, whose lessonsthe convention took to heart and whose influence manifests itself throughout theconstitution of the republic.7

On July 7, 1898, President McKinley approved of the Joint Resolution(commonly referred to as the "Newlands Resolution") "To Provide forAnnexing the Hawaiian Islands to the United States." This resolution

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authorized the President to appoint, by and with the advice and consentof the Senate, "five commissioners, at least two of whom shall beresidents of the Hawaiian Islands, who shall, as soon as reasonablypracticable, recommend to Congress such legislation concerning theHawaiian Islands as they shall deem necessary or proper."

The composition of the commission is described as follows:President McKinley appointed five men of marked ability. He chose two representa-

tives of the Islands. One was Sanford B. Dole, leader of the revolution, President of theRepublic, and first governor of the islands, and the other was Walter F. Frear, sub-sequently governor of the territory and chief justice of its supreme court. From theSenate came S. M. Cullom, of Illinois, who had become famous for his report in 1886on national regulation of railroads, and J. T. Morgan, the only Democrat on theCommission, who was for many years on the Foreign Relations Committee and who hadbeen a student of insular affairs and a prominent advocate of independence for Cuba.The fifth member of the committee was Representative R. R. Hitt, who had served anumber of terms in Congress after a distinguished career in the diplomatic service.8

The commission recommended to Congress an organic act whichprovided for territorial government. The Hawaii Organic Act, approvedon April 30, 1900, took effect on June 14, 1900, and served as Hawaii's"constitution", with amendments, until Hawaii gained statehood in1959.

The Organic Act conferred U.S. citizenship to "all persons who werecitizens of the Republic of Hawaii," and provided that the U.S. Con-stitution "shall have the same force and effect within the said Territoryas elsewhere in the United States." While the Act established a popularlyelected bicameral legislature, it called for the appointment of theGovernor, Secretary, and the justices of the Supreme Court and CircuitCourts of the Territory of Hawaii by the President of the United States.

III. CONSTITUTIONS OF THE STATE OF HAWAII

Constitution making, like other acts of lawmaking, embodies as well as reflects theplay of the formative forces which contribute to shaping the final product. Historyplays an important role in the canalizing of those forces, even if no more than to proffera too easy precedent to follow. Hawaii's refurbished 1968 constitution is an amendedversion of that adopted in 1950. The drafting of the latter was in good part conditionedby the Islands' experiences with the workings of the territory's Organic Act, just aseach of the earlier documents relied somewhat on those that preceded it. Notwith-standing this heritage, which helps to relate the substantive nuances and variations ofthe Islands' constitutions with the long history of development under a succession ofSouth Seas political regimes, as well as with unique geography, demography and anisland economy, the process of preparing Hawaii's state constitutions falls squarelywithin the central stream of constitution making in the United States, and can bestudied as such.9

A. 1950 ConstitutionOn August 21, 1959, President Eisenhower proclaimed that "the

procedural requirements imposed by the Congress on the State of

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Hawaii to entitle that state to admission into the Union have beencomplied with in all respects and that admission of the state ot Hawaiiinto the Union on an equal footing with other states of the Union is nowaccomplished."

Hawaii's quest for statehood has a long history.10 Although statehoodwas not attained until 1959, the citizens of Hawaii had engaged in anumber of organized activities in support and anticipation of statehood.Perhaps the most dramatic of these was the meeting of a "state"constitutional convention in 1950 to draft a "hope chest" state constitu-tion for Hawaii.

But even before the duly elected delegates convened on April 4, 1950,the preliminaries for this convention had been handled by the Territoryof Hawaii's Statehood Commission which had, in 1947, appointed a24-member "state constitution committee" to lay the necessary ground-work for the convention.11

In 1949, the Territorial Legislature passed an act "to provide for aconstitutional convention, the adoption of a State Constitution, and theforwarding of the same to the Congress of the United States." (Act 334,Session Laws of Hawaii 1949) Section 1 spelled out the purpose ofthe Act:

In order that Hawaii may be admitted in the Union on an equal footing with theoriginal states, a convention for the purpose of forming a constitution and state govern-ment and otherwise preparing for such admission as a state shall be held, and the act ofsaid convention shall be submitted for ratification by the people, as provided in this Act.

The 1949 law called for a constitutional convention of 63 delegates,chosen on a non-partisan ballot at a primary election on February 11,1950, and a general election on March 21, 1950. The convention met ina spacious barn-like structure which was the Honolulu Armory (wherenow stands the new State Capitol) from April 4 to July 22, 1950.

The product of the 1950 convention was overwhelmingly ratified bythe citizens of Hawaii in the general election held on November 7, 1950,by a vote of 82,788 to 27,109. A visiting political scientist on the sceneat that time notes:

The majority by which the Constitution was ratified was not fully indicative of thepro-statehood sentiment. Some opposed the Constitution in the hope that a moreliberal document might result. The only organized opposition came from the Inter-national Longshoremen's and Warehousemen's Union, and this union, on May 1,1950,reiterated it was on record in favor of "speedy enactment of statehood." The featuresobjectional to the union in the Constitution as submitted were, lack of initiative,referendum and recall provisions, lack of provisions for free school books and supplies,the appointment of judges and departmental heads, the apportionment section forselection of legislators, and an article dealing with the Hawaiian Homes Commission.12

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The 1950 Constitution, with four amendments imposed upon it bythe statehood enabling act, became the Constitution of the State ofHawaii when Hawaii became a state in 1959.

The Constitution of 1950 is a relatively short document of approxi-mately 14,000 words.13 It has generally been praised as a moderndocument incorporating many of the features favored by politicalscientists and constitutional experts.

The 1950 Constitution stayed with fundamentals and provided thefollowing for the government of the new State of Hawaii: a bicamerallegislature with a Senate of 25 members and a House of Representativesof 51 members; a short ballot which calls for the election of only twostatewide officers, the Governor and Lieutenant Governor; a centralizedadministration consisting of no more than twenty principal departmentswhose executives are to be appointed by the governor with the advice andconsent of the senate; supreme court and circuit court justices likewiseto be appointed by the governor with the advice and consent of thesenate; and local governments under the control of the state legislature.The statewide system of public education was retained as were theprovisions of the Hawaiian Homes Commission Act.

The 1950 Constitution, according to Meller, "showed and was meantto demonstrate how thoroughly the people of the Islands were imbuedwith American political and cultural traditions."14

B. 1968 ConstitutionIf the 1950 constitutional convention was motivated by the desire for

statehood, the 1968 convention may be said to have been called for thepurpose of handling the problem of legislative reapportionment. Whenthe U.S. Supreme Court, in Reynolds v. Sims in 1964 and in subsequentcases, announced a "one man, one vote" doctrine, Hawaii, along withthe other states, found her legislative apportionment to be in violationof the equal protection clause of the federal constitution.

In early 1965, the federal district court specifically ruled that theapportionment of Hawaii's Senate was invalid. When the Legislaturecould not agree on an acceptable reapportionment plan, the only routeappeared to be what the federal court had directed in the first place: aconstitutional convention to amend the provisions for legislativeapportionment.

Thus, in the 1966 general electon, the following question was on theballot: "Shall there be a Convention to propose a revision of or amend-ments to the Constitution." Well aware of the problem which was beingaddressed by the question, the electorate voted 119,097 (66%) to 62,120in favor of a constitutional convention.

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The Legislature responded by passing Act 222 during the 1967session. The Act provided for a constitutional convention of 82 delegates,elected on a non-partisan basis at a special election on June 1, 1968. Theconvention convened on July 15, 1968, using the facilities of the adjoin-ing campuses of McKinley High School and Kapiolani CommunityCollege.

A number of factors conspired to discourage the 1968 conventionfrom considering fundamental changes in the Constitution. To beginwith, the Convention received less than enthusiastic support from theelected officials and was viewed as being called for the primary, if notsole, purpose of correcting the problem of legislative reapportionment.But it was also significant that of 82 delegates, 42 or 51 percent wereincumbent or ex-legislators (37 incumbents and 5 with previous legisla-tive experience). Also the selection of school campuses as a conventionsite suggested to some a limited convention with a built-in deadline, forthe delegates who first officially met on July 15 were well aware that theschools opened their fall terms during the first week of September.Thus, "the product which emerged from the 1968 deliberations con-sequently could be expected to be more confirmatory than novel, moreamendatory than revolutionary, and more concerned with the details ofimplementation than the broad sweep of philosophic formulation."15

The 1968 Convention handled the problem of legislative apportion-ment and also did discuss, albeit not often extensively, a wide range ofissues. And it presented its product to the voters in a novel and ingeniousway. Unlike the 1950 ballot which asked for a "yes" or "no" vote inratifying the constitution as a whole, the 1968 convention presented itsamendments as 23 discrete proposals and presented the electorate witha three-part ballot: "yes" on all 23 proposals, "no" on all 23 proposals,and "yes except that I vote no on one or more" of the 23 proposals. Inthis manner, all but one of the amendments were accepted by the voters.The one amendment which was defeated proposed that the voting agebe lowered from 20 to 18 years of age; ironically, the adoption of the26th amendment to the U.S. Constitution in 1971 lowered the votingage to 18.

Besides legislative apportionment, other amendments which wereratified in 1968 which may be noteworthy accomplished the following:strengthened certain aspects ot the Bill of Rights, liberalized voterqualifications, authorized a presidential preferential primary (not yetimplemented by the Legislature), made changes in legislative procedures,lengthened the terms of justices of the supreme and circuit courts,changed the state and county debt limits, gave local governments morecontrol over their internal organization through their charters, required

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each jurisdiction to adopt a code of ethics, and provided for collectivebargaining for public employees.

C. Prelude to the 1978 Constitutional ConventionThe Hawaii Constitution contains this provision on constitutional

conventions:

The legislature may submit to the electorate at any general or special election thequestion, "Shall there be a convention to propose a revision of or amendments to theConstitution?" If any ten-year period shall elapse during which the question shall nothave been submitted, the lieutenant governor shall certify the question, to be voted onat the first general election following the expiration of such period. (Article XV, Sec. 2.)

Since that question had been asked in 1966 and answered in theaffirmative, resulting in the 1968 convention, the query in 1975 was:should not the question be placed on the 1976 general election ballot asa "ten-year period" would have elapsed.

The Lieutenant Governor requested an opinion on the matter fromthe Attorney General. The Attorney General responded that "since theten-year period which began after November 8, 1966, the last time thequestion was submitted to the electorate, would not expire untilNovember 8, 1976,"16 the question should not be put until the generalelection of 1978. (The general election of 1976 was scheduled forNovember 2.) This opinion was subjected to a court challenge and publicsentiment seemed to favor a 1976 determination of the question. Thelegislature bowed to public sentiment and to "common sense" incalculating ten years, and decided to place the question before the votersin 1976.

The question, "Shall there be a convention", appeared on the ballotat the general election on November 2, 1976, and the vote was 199,831(74%) in favor and 69,264 against.

This rather large affirmative vote may have surprised some politicalobservers as, unlike the period before the 1950 and 1968 conventions,there appeared to be no single overriding or pressing issue. PerhapsHawaii shared with the rest of the nation a general dissatisfaction withgovernment following Watergate. Public interest groups such as Com-mon Cause and the League of Women Voters not surprisingly pushedfor a constitutional convention as a healthy and democratic device toreview basic government organization and procedures. Special interestgroups saw yet another opportunity to write their platforms into theConstitution. The Honolulu dailies, particularly The Honolulu Star-Bulletin, editorialized in favor of a constitutional convention. Fewpolitical leaders, despite their private reservations as to the "need" fora convention, would publicly oppose the holding of another constitu-

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tional convention. As election time approached, most of Hawaii's politicalleaders said that they favored the holding of a constitutional conventionalthough there seemed to be little agreement as to what major issuesshould be addressed.17

The Hawaii Legislative Reference Bureau, pursuant to a HouseResolution, prepared and widely distributed before the election aninformational brochure, "The Constitutional Convention: Yes or No."While it obviously did not urge a "yes" vote (and did explain "what willhappen if the voters reject the calling of a constitutional convention"),the brochure contained a helpful listing of "kinds of subjects" which theconstitutional convention could consider. Among the twenty questionslisted under nine general subject headings were the following:

—Whether there should be initiative, referendum, or recall.—Whether the terms of elected officials should be limited.—Whether the Legislature should be other than bicameral. (Even the

possibility of a "parliamentary form" was mentioned.)—Whether any executive officer (other than governor and lieutenant

governor) should be elected.—Whether there should be a change in the manner of selecting judges.—Whether counties should have the authority for taxation.—Whether the debt limit should be abolished or changed.—Whether changes should be made in the Board of Education.—Whether the Constitution should be more specific about the con-

servation of natural resources.—Whether the right to strike of public employees should be limited.

That there were citizen groups, some large in number and/or vocal,who favored constitutional changes on many of the above questionsthere was no doubt. As The Honolulu Star-Bulletin editorialized, "Thelist of major questions that such a convention should address is sub-stantial."18

But there was general agreement that there was little or no consensusas to the specific major issues the convention should address.

Against this background and with a mandate from the electorate thata constitutional convention be held, the Legislature passed Act 17 duringthe Special Session of 1977. The law called for the selection of 102delegates at a non-partisan special election on May 20, 1978. Theconvention was scheduled to "meet at Honolulu on the 5th day of July,1978, at a suitable place designated by the governor."

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As this article was being written in late June, the convention was notyet in official session, and little can be said about its product. But somecomparisons of the 1950, 1968, and 1978 constitutional conventions maybe useful, and most of the remainder of this article will attempt todescribe some similarities and differences and discuss some of theirimplications.

IV. CONSTITUTIONAL CONVENTIONS: 1950, 1968 , AND 1978

A. Population, Voters, and ElectionsThat Hawaii has undergone rapid changes during the period of its

three constitutional conventions from 1950 to 1978 can be seen in someof the following statistics.

From 1950 to 1977, the population of the islands increased 79 percent:19

Year Population Percent Increase

1950 499,7941960 632,772 26.6

1970 769,913 21.71977 894,700 16.2

The distribution of the state's population is of political significance, and80 percent of Hawaii's people reside on the island of Oahu (the City andCounty of Honolulu). What may be significant in the following set ofdata is that, since 1970, the neighbor islands have been growing at afaster rate.20

Oahu Neighbor IslandsYear Total

Population Percent Population Percent

1950 353,020 70.6 146,774 29.4 499.794i960 500,409 79.1 132,363 20.9 632,7721970 630,528 81.9 139.385 18.1 769,9131977 721,800 80.7 172,900 19.3 894,700

The general population rose 79 percent from 1950 to 1977. Even moredramatic was the 181 percent increase in the number of registered voterswho were eligible to participate in the 1950, 1968, and 1978 elections forconstitutional convention delegates.21

Election Date Registered Voters Percent Increase (1950)

March 21, 1950 122,849June 1, 1968 242,827 97.7May 20, 1978 344,952 180.8

But as the eligible electorate grew, the voting turn-outs at the electionsfor constitutional convention delegates decreased:22

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Election Date

195019681978

Registered Voters122,849242,827344,952

Votes Cast97,361

110,370119,250

Percent Voting79.345.534.6

The voting turn-out of 35 percent in the 1978 special election is thelowest ever recorded for elections in Hawaii. Although a low turn-outis predictable for any special election, most observers were somewhatsurprised inasmuch as the electorate had voted in favor of holding aconstitutional convention by an overwhelming 3-to-1 margin—a margingreater than the 2-to-i recorded ten years earlier, as shown below:23

Election Date In Favor of Convention Against ConventionNovember 8, 1966 119.097(65.7%) 62,120(34.3%)November 2, 1976 199.831 (74-3%) 69,264(25.7%)

As the number of delegates to each succeeding convention increased(from 63 to 82 to 102), so did the number of candidates running forthose positions. Ratios of delegates to candidates and to registered votersare given below:

Delegate _ . . . Ratio: Delegates Ratio: Delegates toYear Posts candidates to Candidates Registered Voters1950 63 243 1:3.9 1:1,9501968 82 378 1:4.6 1:2,9611978 102 697 1:6.8 1:3,382

The large number of candidates in 1978 may partly be attributed to adesire for "grass roots" or participatory democracy. The media, particu-larly the newspapers, and public interest groups extolled the virtues ofother than incumbent legislators serving as convention delegates. Howwell this campaign may have succeeded24 can be seen in the fact that onlytwo incumbent legislators chose to run as convention delegates, and bothwere elected. By contrast, in the 1968 elections, 45 incumbent legislatorswere candidates and 37 were elected delegates.

In 1978, the election districts were smaller than for the previousdelegate elections. This coupled with the fact that two were to beelected from each district in a single special election seemed to haveincreased, in the eyes of some candidates, the possibilities of winningsince only a small plurality could mean victory.

At any rate, a record number of candidates filed for election for thetwo seats in each district. The smallest number of candidates in eachdistrict was 6 (4 districts); one district had as many as 30 candidates and7 districts had more than 20 candidates. The Oahu districts averagedmore candidates (1:7.5) than the neighbor island districts (1:4.7).

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With each district averaging over 3,000 registered voters, the highestvote getter in the 1978 elections garnered 1,982 votes (76.7 percent ofthose voting in his district). The delegate elected with the fewest voteshad 363 (19.8 percent of those voting in his district). With the largenumber of candidates in each district, it is not surprising that the greatmajority (89) of the elected delegates received less than 50 percent of thevotes cast in their districts.

After a constitution is drafted or amended, such changes need theratification of the voters. These ratification elections are held in con-junction with general elections and voter turn-outs are therefore generallygood. In the general elections of 1950 and 1968, the electorate approvedthe work of the conventions by wide margins:

November 7, 1950 YES 82,788 (75.3%)NO 27,109 (24.7%)

November 5, 196825 YES (ALL) 49,546 (31.7%)YES, B U T . . . 81,313(52.1%)NO (ALL) 25,287 (16.2%)

B. Conventions and DelegatesAs in the past, no specified time limits have been imposed on the 1978

constitutional convention. However, a limit to each delegate's pay at$4,000, most delegates' commitments to their regular occupations or torunning for political office in the general election of '78, and the expecta-tion (though not a requirement) that the product of the convention wouldbe voted upon during the general election of November 7, 1978, allconspire to restrict the duration of the convention. Past conventions metas follows:

Length in DaysConventions Convened Adjourned Working Calendar

1950 April 4, 1950 July 22, 1950 79 1011968 July 15, 1968 October 21, 1968 57 72

A suitable site for constitutional conventions always seems to presentproblems, and all conventions have met in temporary quarters:

1950 Honolulu Armory (since demolished and State Capitol erectedon site)

1968 McKinley High School and Kapiolani Community College1978 Old Federal Building (Queen and Richards Streets)

One of the striking features of the 1978 convention is its delegatecomposition. Unlike the conventions of 1950 and 1968, the 1978 conven-tion does not contain familiar political faces. Mention has already been

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made of the fact that only two incumbent legislators chose to run and wereelected to the 1978 convention. In tabular form, this rather unique featureof the 1978 convention can readily be seen.26

1950 1968 1978

Percent of Percent of Percent ofNo. Delegates No. Delegates No. Delegates

Incumbent legislators 12 (19%) 37 (45%) 2 (2%)Previous legislative experience 6 (10%) 5 (6%) 2 (2%)

Total 18 (29%) 42 (51%) 4 (4%)

While incumbent and ex-legislators constituted 51 percent of the 1968convention, they were down to only four (4 percent) in 1978. Thissparsity of experienced elected officials also applied to county council-men. Whereas in 1950 there were six and in 1968 five incumbent orex-councilmen, in the 1978 convention there was a lone incumbentcouncilman. The 1978 convention did have two ex-county chairpersonsas delegates. Six delegates served in the 1968 constitutional convention,and one delegate served in the 1950 convention.

The new faces of 1978 were also, on the average, younger than theirpredecessors. The median age in 1968 was 42; in 1978 the median was35. The age distribution of the 1968 and 1978 convention delegatesfollows:27

ig68 Delegates 1978 DelegatesAge Group

No. Percent No. Percent50+ 18 (22.0%) 24 (23.5%)31-50 55 (67.1%) 45 (44-i%)20-30 7 (8.5%) 33 (32.4%)Unknown 2 (2.4%) o

Total 82 102

While those over 50 years of age did not decrease (there were sixretirees in 1978 compared to two in 1968), there was a marked increase(from 9 to 32 percent) in delegates below the age of 30 in 1978. The rangein ages ran from 22 to 73 in 1950, 20 to 63 in 1968, and 20 to 67 in 1978.

Another obvious change in delegate composition in 1978 was thesignificantly larger number of women delegates who were elected:

1950 5 of 63 delegates (7-9%)1968 8 of 82 delegates (9.8%)1978 30 of 102 delegates (29.4%)

Some are sensitive to whether delegates are island-born or, if not, howlong they have been resident in the islands. The data below show thedrop in proportions of island-born delegates :28

1968 1978

No. Percent No. Percent

Island-born 69 (84.2%) 71 (69.6%)Others: Years of Residence

over 20 7 (8.5%) 9 (8.8%)11-20 o 11 (10.8%)

6-10 2 (2.4%) 4 (3.9%)5 or fewer 4 (4-9%) 7 (6.9%)

Total 82 102

Among the 1978 delegates are a larger number, than in previousconventions, of those who have more recently become residents of theIslands. This reflects the recent migration trends from the mainland toHawaii and today's easy and high mobility. This mobility also accountsfor the fact that a few "natives" are not listed as island-born since theywere born in other areas of the world where their parents, well-establishedisland residents, were then in temporary residence.

Meller offers a classification of the 1950 and 1968 delegates by"occupation." A preliminary attempt is made below to place the 1978delegates into those occupational categories.29

1950 1965 1978

Occupation No. Percent No. Percent No. Percent

Lawyers 19 (30%) 25 (30%) 20 (19-6%)

Business 25 (40%) 35 (43%) 26 (25.5%)Educators 7 (11%) 6 (7%) 14 (i3-7%)Doctors, etc. 5 (8%) 2 (2%) oHousewives 3 (5%) 2 (2%) 3 (2.9%)Union Organizers 2 (3%) 2 (2%) 1 (1.0%)Full-Time Public Officers 1 (2%) 2 (2%) 1 (1.0%)Retired 1 (2%) 2 (2%) 6 (5.9%)Student o 1 (1%) 7 (6.9%)Civil Service Employees o 5 (6%) 13 (12.7%)Unemployed 0 0 6 (5-9%)Others or Unknown 0 0 5 (4-9%)

Total 63 82 102

What is noteworthy on the "occupation" table is the decrease in 1978of lawyers, businessmen, and doctors, and the increase in educators,retirees, students, and civil service employees. Also interesting is thefact that six delegates just before the convention described themselvesas "unemployed;" the majority of these worked as legal researchers inthe recently adjourned legislature.30

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C. The Politics of Constitutional Conventions

Constitutions are political documents. The fact that they help determine the rulesof politics would in itself make them the object of manipulation by the various interestsof society. Their content is constantly a matter of concern to groups and individuals,and the very fact that constitutions are more difficult to change than are statute lawscauses groups to protect their special interests by incorporating them whenever possibleinto the fundamental law of the state.31

In drawing the important distinction between constitutional conven-tions and legislative sessions, there is a tendency to attribute to theformer an apolitical or "above politics" nature. But it is impossible toavoid politics in a convention which is dealing with the basic politicaldocument of the state. However, it is often the case that the politics ofconstitutional conventions will differ somewhat from the partisan politicswhich is associated with legislatures.

Some key observations about past constitutional convention politics inother states may help in the understanding of Hawaii's convention. Atany rate, it would be interesting to see if these findings are applicable toHawaii. For example, it has been noted that the basic division withinmost conventions is not between the political parties but betweenreformers and preservers of the status quo. "This line of division is oftenmore pronounced than the division between Republicans versus Demo-crats, urban versus rural, a governor's supporters versus his opponents,legislators versus nonlegislators, and so forth."32 This division seemedevident in the pre-convention organizational efforts which split theHawaii delegates into two camps—a more conservative majority groupversus a more reform-minded minority that is referred to in the pressas "independents." And it is interesting to note that the elected chairmanof the majority group, predominantly made up of Democrats, is aRepublican.

To understand further the behavior of convention delegates, a six-category delegate typology has been developed. This typology is basedon the "two interrelated dimensions of (i) motivation for entering theconvention and (2) attitude toward innovation. The types, which maybe ranged on a continuum between the status quo and reform poles,include:"33

Standpatters — are office holders who enter the convention to protecta present position in the governmental structure.

Standins — are selected to the convention as a reward for variouskinds of political loyalty by local political magnates or office holderswho find it inadvisable to seek the office themselves.

Statesmen — have held positions in high public office and enter theconvention for public prestige.

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Chieftains — are individuals with a large existing power base in statepolitics, and they enter the convention for career advancement.

Aspirants — are young professionals, often lawyers, on the politicalmake; the convention is a stepping-off point to further politicalactivity.

Reformers — are likely to be highly educated professionals who enterthe convention to change the established order.

Some of the delegates may not fall neatly into any of these categoriesbut the typology may be of assistance in fathoming convention behaviorand politics. Certainly, the major battles will be between standpattersand reformers, and every convention seems to provide a launching padfor aspiring politicians.34 Hawaii's 1978 convention, with young andinexperienced delegates, may have more than its share of "aspirants."

V. ISSUES

The issue for the 1950 convention was statehood; the issue for the1968 convention was reapportionment. As the 1978 Convention ap-proached its opening day, there was little consensus among the delegatesas to what the major issues were. A concern, according to some, aspoliticking went on to determine leadership and organizational patterns,was to keep the convention open so all issues could be thoroughly andpublicly aired.

The 1978 Convention has been characterized as "grass roots." Rightafter the election, The Honolulu Star-Bulletin editorialized:

We like what we see in the results of Saturday's Con Con voting.

As expected, the voter turnout was disappointing, but the winners appear to be a seriousand dedicated lot.

Nothing has happened since the candidate filing deadline to change our judgment thatthis will be very much a "grass roots" Con Con.38

The editorial went on to predict that: "Nevertheless, this will be aconservative convention. The delegates have said in overwhelmingnumbers that they want to make only a few changes in the existingconstitution."

The front page headline of the Sunday Star-Bulletin and Advertiser(May 21, 1978) announcing the delegate election results read: "MeagerCon Con voting puts moderate reform on agenda." In the same edition,an article analyzing the election concluded: "No single issue emerges asthe dominant concern of the newly elected Constitutional Conventiondelegates. . . . This does not mean that the convention will not eventu-

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ally center its attention on a few issues, but rather that the delegates holda range of ideas on what should be the highest priority in their review ofthe state constitution."36 A news analysis which appeared the followingmorning echoed this sentiment: "On the whole, the public can expect tosee only a few changes proposed by this summer's Hawaii ConstitutionalConvention."37

Numerous polls were conducted to determine the priority issues forthe constitutional convention. The editor of The Honolulu Star-Bulletinrequested his readers to "speak up" and nominate, through a printedballot, "the matters you think are most important for the 1978 Con Conto consider." (September 12, 1977) The results were published in theSeptember 23, 1977, edition, and the list began:

1. A one-house legislature (184 votes)2. Provide initiative so citizens can petition for law changes (151)3. Provide referendum—direct popular voting on initiatives (148)4. Provide recall—public petition for removal of elected officers by special election

(146)5. Limit the right of public employees to strike (107)6. Provide for restraints on population growth (106)

The editor sent out another invitation to his readers to "speak up"right after the delegate elections (on May 22, 1978) and published theresults on June 12. He summarized the results as follows:

Initiative and referendum was the issue that drew the most votes for top priorityconsideration . . .

However, the proposal receiving the most affirmative votes was stronger ethics andpublic disclosure requirements. The most negative votes went to the proposal to banabortion.38

Two University of Hawaii political science professors conducted anextensive telephone poll and the results were published in The HonoluluAdvertiser (November 20, 21, and 22, 1977). In their survey, they"uncovered a vast reservoir of dissatisfaction with state governmentalperformance in general, and great unhappiness with certain agencies andbranches in particular." Their listing or issues "extremely important todiscuss at Con Con" read:

I .

2 .

3-

4-

5-

CrimePublic educationConservation of energyWelfare systemUnemployment

6.

7-8.

9-1 0 .

Political corruptionEnvironmental pollutionCriminal justice systemHousingPopulation growth

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A more extensive poll of "Hawaii public opinion concerning the 1978Hawaii Constitutional Convention" was prepared for The First HawaiianBank by the Public Affairs Advisory Services, Inc., during the periodsJanuary 28 to February 1, 1978, and April 15 to 18, 1978.39

Some of the "summary highlights" of the February 24, 1978, reportare:

— A plurality (38.7 percent) believe that the major purpose of the 1978 ConstitutionalConvention is to make necessary changes in the basic structure of State government.The others believe that the Convention's major purpose is to solve current issuesor problems.

— A plurality (45.6 percent) feel "somewhat informed" about major issues which mayconfront the 1978 Constitutional Convention. However, 38.7 percent feel that theyare "not very well-informed."

— A majority (52.0 percent) anticipate that the 1978 Constitutional Convention should"make a few changes" in the document whereas 31.0 percent believe that "a lot ofchanges" should be made.

On "general substantive issues," it was reported that majoritiesfavored: limits on government salaries, the death penalty for majorcrimes, limits to population growth, keeping public employee collectivebargaining, and not prohibiting abortions.40

Among the results of the second poll were the following: "A majority(50.1 percent) of the public indicate that they don't really know aboutany of the people running in their district for the Con Con," and thatmajorities favored initiative, referendum, and "the Hawaii equivalent ofthe E.R.A."41

All of these polls seem to confirm the fact that there was no overridingissue to be faced by the 1978 Convention. Indeed, the polls, as theydiffer in their procedures and techniques, do not agree on the identifica-tion of priority issues to be discussed by the convention.

As the convention progresses, major issues may emerge. But writingon the eve of the opening day of the convention, one is tempted to ask:Is the constitutional convention the most effective way of stimulatingpublic discussion on and formulating solutions for state and localproblems ? Will not a constitutional commission,42 perhaps followed bya constitutional convention if necessary, serve better such purposes?Need a constitutional convention be called every ten years ?

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NOTES

1 This article was written in late June before the 1978 Constitutional Conventionofficially convened.

2 Ralph S. Kuykendall, Constitutions of the Hawaiian Kingdom; A Brief History andAnalysis (Honolulu: Hawaiian Historical Society, Papers, No. 21, October 8, 1840),p. 7. For copies of constitutions, see Robert C. Lydecker, Roster: Legislatures ofHawaii, 1841-1918 ; Constitutions of Monarchy and Republic ; Speeches of Sovereignsand President (Honolulu: The Hawaiian Gazette Co., 1918); also Henry EdwardChambers, Constitutional History of Hawaii (Baltimore: Johns Hopkins Press, 1896).

3 Lydecker, op.cit., p. 4.4 Thomas Marshall Spaulding, The Constitution of the Hawaiian Republic (Honolulu:

University of Hawaii, Occasional Paper No. 12, April, 1931), p. 3.5 Kuykendall, op.cit., p. 56. See also Gavan Daws, Shoal of Time; A History of the

Hawaiian Islands (New York: Macmillan, 1968), pp. 268-70, 280-83.6 Spaulding, op.cit., p. 3.7 Ibid. For a contemporary explanation of the Constitution of the Republic of Hawaii,

see also Albert Francis Judd, "The Constitution of the Republic of Hawaii," YaleLaw Journal, Vol. 4, No. 2 (December, 1894), pp. 53-60.

8 Robert M. C. Littler, The Governance of Hawaii; A Study in Territorial Administra-tion (Stanford University, California: Stanford University Press, 1929), p. 54.

9 Norman Meller, With an Understanding Heart; Constitution Making in Hawaii(New York: National Municipal League, State Constitutional Convention StudiesNumber Five, 1971), pp. 1-2. The rest of the article relies heavily on this comprehen-sive report of the 1950 and 1968 constitutional conventions by Professor Meller.

10 For a summary of statehood efforts, see Daws, op.cit., pp. 381-91. Also Lawrence H.Fuchs, Hawaii Pono: A Social History (New York: Harcourt, Brace & World Inc.,1961), pp. 406-14; Ralph S. Kuykendall and A. Grove Day, Hawaii: A History;From Polynesian Kingdom to American State (Englewood Cliffs, New Jersey: Prentice-Hall, Rev. ed., 1961), pp. 287-303.

11 George H. McLane, "Hawaii Plans Its First State Constitution" (Honolulu: HawaiiStatehood Commission, 1947, Mimeo), p. 3. It should be noted that drafting stateconstitutions before attaining statehood is not without precedent; fifteen states beforeHawaii had followed this practice. It should also be noted that in 1948 the studentsat the University of Hawaii held a mock constitutional convention and drafted theirversion of a constitution for the State of Hawaii.

12 S. Gale Lowrie, "Hawaii Drafts A Constitution," University of Cincinnati LawReview, Vol. XX, No. 2 (March, 1951), p. 217.

13 The median length of state constitutions is estimated at 21,350 words; the longestin 1950 was that of California with 72,000 words. See The Book of the States forbiennial compilations and comparisons of state constitutional data.

14 Meller, op.cit., p. 84. For a discussion of the 1950 Constitution, see also Lowrie,op.cit., and Harold S. Roberts, "Making Hawaii's Constitution," State Government,Vol. 23, No. 12 (December, 1950), pp. 276-80, also "Sound Prelude to Statehood,"National Municipal Review, Vol. 39, No. 11 (September, 1950), pp. 377-82.

15 Meller, op.cit., p. 86.16 State of Hawaii, Department of the Attorney General, Opinion No. 75-6, dated May

27, 1975.17 See, for example, comments by political leaders in The Honolulu Star-Bulletin of

October 26, 1976, p. A-19.18 The Honolulu Star-Bulletin, Editorial, November 13, 1975, p. A-20.19 U.S. Department of Commerce, Bureau of the Census, U.S. Census Of Population,

1950, 1960,1970 ; State of Hawaii, Department of Planning and Economic Develop-ment, for provisional estimate of the population of Hawaii as of July 1, 1977.

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20 Ibid.21 State of Hawaii, Office of the Lieutenant Governor, Reports on Results of Votes Cast.

For a summary of election statistics, see Robert C. Schmitt, Historical Statistics ofHawaii (Honolulu: University Press of Hawaii, 1977).

22 State of Hawaii, Office of the Lieutenant Governor, op.cit. (Note that the votingpercentages are in terms of "registered voters;" a more meaningful percentage wouldbe in terms of "eligible voters.")

23 Ibid.24 That the campaign to discourage legislators from running as constitutional conven-

tion delegates succeeded too well may be reflected in the editorials in The HonoluluAdvertiser, April 22, 1978, and The Honolulu Star-Bulletin, May 19, 1978.

25 For explanation of 1968 voting, see Meller, op.cit., pp. 118-134.26 1950 and 1968 tabulations from Meller, op.cit., p. 45. See The Honolulu Advertiser,

"Political pros are scarce in '78 Con Con," May 22, 1978.27 1968 from Meller, op.cit., p. 41; 1978 from The Honolulu Star-Bulletin and City and

County of Honolulu, Roster of Registered Voters.28 1968 from Meller, op.cit., p. 40; 1978 from The Honolulu Star-Bulletin.29 Meller, op.cit., p. 42; 1978 data courtesy of The Honolulu Star-Bulletin. For 1978, the

categories of "unemployed" and "others or unknown" have been added. Completeinformation is expected after the delegates assemble in Honolulu for the convention.

30 See The Honolulu Star-Bulletin, "Legislative Aides Run for Con Con," April 22,1978.

31 Charles R. Adrian, State and Local Governments (New York: McGraw-Hill, 4th ed.,1976), p. 84.

32 T h o m a s R. D y e , Politics in States and Communities (Eng lewood Cliffs, N . J . : P r e n t i c e -Hal l , 3 rd ed. , 1977), p . 28 .

33 Elmer E. Cornwell, Jr., Jay S. Goodman, and Wayne R. Swanson, "State Constitu-tional Conventions: Delegates, Roll Calls, and Issues," Midwest Journal of PoliticalScience, 14 (February, 1970), esp. pp. 107-112.

34 T h e 1968 Convent ion was the spr ingboard for n ine elected officials. See The HonoluluStar-Bulletin, " C o n Con H a s Been Political Sp r ingboa rd , " M a y 22, 1978.

35 The Honolulu Star-Bulletin, M a y 22, 1978.36 The Sunday Star-Bulletin and Advertiser, M a y 2 1 , 1978.37 The Honolulu Advertiser, May 22, 1978.38 The Honolulu Star-Bulletin, " 'Speak Up' Results," June 12, 1978.39 Poll results were published by the Public Affairs Advisory Services, Inc., in reports

dated February 24, 1978, and May 10, 1978. The results were also published inThe Honolulu Advertiser, February 19 to 26, 1978, and May 7 to 10, 1978.

40 Public Affairs Advisory Services, Inc., "Final Report of a Poll of Hawaii PublicOpinion concerning the 1978 Hawaii Constitutional Convention, prepared for TheFirst Hawaiian Bank and conducted on January 28-February 1, 1978" (Honolulu:February 24, 1978), p. iii.

41 Public Affairs Advisory Services, Inc., "Final Report of a Poll of Hawaii PublicOpinion concerning the 1978 Hawaii Constitutional Convention prepared for TheFirst Hawaiian Bank and conducted on April 15-18, 1978" (Honolulu: May 10,1978), pp. 1-3.

42 A constitutional commission is an appointed group of citizens who will do researchand hold public hearings on selected public issues; recommendations can be sub-mitted to the legislature or to a constitutional convention. Several states now haveconstitutional commissions; see the biennial reviews of state constitutional develop-ments in The Book of the States. Some local discussion of constitutional commissionsappeared in The Honolulu Advertiser: an editorial on January 29, 1976, and a rebuttalon February 16, 1976.

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